For years, it's been a notoriously popular internet meme to remix the "bunker scene" from the 2004 film "Downfall." In the original scene, actor Bruno Ganz portrays Adolf Hitler's ranting breakdown in the final days of the Third Reich. In the hands of internet remixers, the scene's English-language subtitles have been modified to transform it into commentary on everything from the subprime mortage crisis to breakfast theft. There've even been meta-commentaries on the meme itself.

EFF Board Chairman Brad Templeton recently remixed his own version, with Hitler ranting about troubles with DRM and the failure of DMCA takedowns to prevent fair uses. Take a look, and then keep reading to see what Brad's experience making it tells us about fair use and the DMCA.

Unfortunately for Brad, he found in making his parody that creating a fair use like this — and doing so legally — is not as easy as it ought to be. As a high profile advocate for digital rights, Brad naturally wants to avoid breaking any laws. And while fair use protects his parody from charges of copyright infringement, he wanted to ensure that he didn't accidentally violate other laws — in particular the DMCA's prohibition on circumventing encryption.

This meant that Brad couldn't just rip a copy from the his own legally purchased DVD. Instead, just to be safe, he would have to make a copy of the film using the "analog hole," a form of copying that has been recognized by the courts as legally permissible. But that approach brought multiple headaches, as Brad notes on his blog:

So I got a copy of the movie, and discovered that the U.S. edition of the film has the English subtitles encoded right into the video. Normally subtitles are in their own file and can be turned on and off, but not in this edition.

Brad had to buy a European version of the film, which comes with optional subtitles, but this meant hassling with region code restrictions:

One can get region 2 DVD players, but the easiest way to play one is to get a PC with a DVD drive. The Windows software DVD players all let you set the region code when you first use them, some let you change it a few times but won’t let you change it after that. I have so many PCs and DVD players that it is no bother to me to set one to region 2, and so I did. It was able to play the video out the S-video port, and I connected that to my linux box with a video capture card, the same one that records my Cable TV for me.

The upshot is that Brad was able to create a brilliant parody — with a nice tip of the hat to EFF's work protecting fair uses like this one from bogus takedown notices — but only after weeks of hassling with various technical problems that would make most people throw up their hands in frustration. This is a perfect example of why EFF has been advocating for DMCA exemptions for this sort of activity. No one should have to surmount these sorts of technical barriers just to make use of their legally protected free speech rights!

We at EFF have long lamented that, too often, incumbent industry leaders use law as a weapon to quell disruptive innovators, to the detriment of competition, innovation, and the public. Here's how Larry Downes puts it in a recent Forbes interview about his forthcoming book due out in October, The Laws of Disruption:

Where innovators must improve is anticipating legal challenges at the heart of their products and services. These come not from the government but from competitors, who use the legal system to slow or stop the progress of innovations they don't like. The more radical the innovation, the more likely that traditional competitors will use the courts to slow or stop your progress. That's a natural consequence of the widening gap between technology's potential to change our lives and our ability to adapt quickly. The tendency for technological innovation to change the rules of an industry is invariably faster than the industry wants to change. Law is one of the principal weapons of resistance.

When it comes to using copyright law as a "weapon of resistance" against innovation, there are plenty of recent examples. Hollywood uses it (see, e.g., the lawsuits against the VCR, DVR). The music industry uses it (see, e.g., the lawsuits against the player piano, first MP3 player, P2P software). Columbia Law Prof. Tim Wu has written the definitive essay on those battles, which are continuing all around us.

But it's worth remembering that it's not just the entertainment industry that has deployed copyright to block new market entrants who promise to bring valuable new tools to the public. Gary Reback, one of the most accomplished Silicon Valley lawyers of the last 20 years, has just published Free the Market, an excellent book covering some of the pivotal legal battles that have defined the competitive landscape among technology companies.

While the whole book is a good read, two chapters tell the story of the Lotus v. Borland case, where spreadsheet market leader Lotus sued upstart Borland, asserting the dangerous (and ultimately unsuccessful) legal theory that menu hierarchies are protected by copyright.

Forbidding the competitive use of Lotus's menus was not going to spur the creation of other software products. Just the opposite. Unless potential competitors could employ the Lotus menus, they would not even try to enter the market, all but eliminating the prospect of meaningful competition. Consumers would lose both the lower prices and the product improvements competition offered. [In ruling against Borland, Judge] Keeton denied the obvious. In the name of protecting innovation, he gave an entrenched company in a self-reinforcing market a strategic weapon, the legal power to crush a new generation of innovators and deny customers the benefits of competition. ...

Market incumbency automatically confers a formidable array of advantages--a well-recognized brand, user familiarity with the incumbent's product, long-standing relationships with corporate customers, an experienced engineering staff, and enormous financial resources. Borland accepted the challenge of competing against a dominant firm on these terms. The greater impediment to Borland's success came from a legal system that worked against market entry. Few challengers could ever muster the resources to weather years of litigation just for the privilege of competing on a playing field that already favored the incumbent.

If you want to know how it turned out for Borland, you'll have to read the book!

On May 21, 2009, Justice Botsford of the Supreme Judicial Court of Massachusetts granted our client Riccardo Calixte's motion to quash the illegal search warrant with which it seized Calixte's computers, phones, ipods, camera and other personal property. Not only is this an enormous victory for Calixte himself, but the ruling is also the highest state court opinion to repudiate the nascent law enforcement "trend" of charging internet users who violate websites' terms of service as criminals. (Case page with background documents here.)

First, a quick recap. According to the warrant application, on January 27, 2009, Boston College police filed a report stating that Calixte and a roommate were having "domestic issues." During a subsequent conversation with police the next day, Calixte's roommate made a series of unsubstantiated and misleading claims about Calixte's computer expertise that the police later used in an attempt to portray him as a criminal, by alleging that Calixte was a "computer science major who is considered a master of the trade among his peers," that Calixte had a reputation as a "hacker," that it is "not uncommon for Mr. Calixte to appear with unknown laptop computers which he says are given to him by Boston College for field testing or he is 'fixing' for other students," and that he "uses two different operating systems to hide his illegal activities. One is the regular B.C. operating system and the other is a black screen with white font which he uses prompt commands on." As part of this laundry list of purportedly suspicious things Calixte allegedly did, the roommate also stated, without any explanatory detail, that he had observed Calixte somehow "hack into the B.C. grading system that is used by professors to change grades for students." Neither Boston College nor any professor apparently reported such a breach, and the police did no follow-up investigation on this or any other of the roommate's aspersions. At some unspecified later date, Calixte's former roommate was the subject of a mass e-mailing to the Boston College community in which he was reported to be gay. Based on some follow-up investigation by the police and by the Boston College IT department, police sought and obtained a search warrant for Calixte's dorm room on March 30, 2009, arguing that all of the above information amounted to probable cause that crimes had been committed.

Justice Botsford agreed with EFF that no probable cause existed and that the search was illegal. The following are a few of Justice Botsford's important findings.

* Rejecting the Commonwealth's argument that the sending of an e-mail from a Yahoo! or gmail account to a Boston College listserv could constitute "obtaining computer services by fraud or misrepresentation" under G.L. c. 266 § 33A or "unauthorized access to a computer system" under G.L. c. 266 § 120F because it might violate some unidentified Boston College terms of service provision:

This appears to be the highest state court to address the question of whether a terms of service violation can itself constitute a "computer hacking" crime, an argument that the district court and jury got wrong in the Lori Drew case.

* Rejecting the idea that using two operating systems is either suspicious or corroborative of the former roommate's claims, as we previously argued, but was simply "part of a listing of alleged activities that do not appear to be unlawful":

* Rejecting the Commonwealth's argument that simply asserting that their witness was "reliable" was enough to support a finding of probable cause:

* Rejecting the Commonwealth's argument that the information provided by the informant established a sufficient "nexus" with Mr. Calixte's apartment and property:

In short, the court rejected every significant argument raised by the Commonwealth. Referring to the information submitted by the police as "sketchy" and "troublingly weak," the court ordered that "all ongoing forensic analysis of the items seized from Calixte must cease." Not a minute too soon...

Eucalyptus is the name of an e-book reader app for the iPhone. It allows you to read public domain books that have been digitized by the volunteers at Project Gutenberg. Apple has rejected Eucalyptus for inclusion in the iTunes App Store because one of the books archived at Project Gutenberg, and thus readable in Eucalyptus, is a Victorian-era translation (just text!) of the Kama Sutra, the ancient Indian compendium of practical information about sex. Since Apple takes technical measures to prevent iPhone owners from running any software not "approved" by Apple, all iPhone owners are denied the benefit of Eucalyptus simply because a prudish Apple reviewer is scandalized by the words "lingam" and "yoni."

Apple defends its "approved apps only" policy on paternalistic grounds -- they are protecting you from "bad" apps. But recent information casts doubt on whether Apple's approval process actually protects iPhone owners -- it looks like Apple may not be doing thorough security testing of all of the thousands of apps submitted. For example, one developer found he could bypass Apple censors by putting "easter eggs" in menus that Apple failed to examine. And the developer of iCall testified before the Copyright Office that, even after months under submission, Apple did no meaningful testing of the iCall app before approving it.

And that's why EFF has asked the Copyright Office to grant an exemption to the DMCA for jailbreaking iPhones. It's none of Apple's business if I want an app on my phone that lets me read public domain books (including the Kama Sutra).

UPDATE: Thanks, no doubt, to the bad press this generated for Apple, it now appears that Apple has changed its mind and has given Eucalyptus the green light. Wonder how many others app developers haven't been so lucky?

Today, United States District Court Chief Judge Vaughn Walker took the government to task for failing to obey his prior orders in Al-Haramain v. Obama (formerly known as Al-Haramain v. Bush), asking the government to explain why he should not sanction the government by holding that the plaintiffs win the warrantless wiretapping lawsuit.

On January 5, Chief Judge Walker had denied the government's third motion to dismiss the Al-Haramain litigation and set up a process to allow the Al Haramain plaintiffs to prosecute the case while protecting classified information. On February 28, 2009, the Ninth Circuit Court of Appeals denied the government's appeal of that order. The government did not seek an appeal to the Supreme Court.

Today, the Court noted the government was "continuing to assert legal positions already specifically rejected by the court in previous orders" and "government officials in one or
more defendant agencies, including the NSA Director ... are refusing to cooperate with the court’s orders." Judge Walker ordered the government to show cause as to "why, as a sanction for failing to obey the court’s orders" the government "should not be prohibited ... from opposing the liability" for spying without warrants and that the "court should not deem liability ... established and proceed to determine the amount of damages to be awarded to plaintiffs." A hearing is set for June 3, 2009 in the San Francisco federal court.

Al-Haramain Islamic Foundation, the Oregon chapter of an Islamic charity, sued the Bush Administration for the illegal surveillance of the organization and its attorneys as part of the NSA warrantless wiretapping program. The case was based on a secret document that was inadvertently disclosed by the government that, according to the plaintiffs, demonstrates that they were subjected to unlawful electronic surveillance outside the scope of the Foreign Intelligence Surveillance Act (FISA).

The Obama Administration has launched several websites to further its commitment on the first full day of Obama's presidency to improving transparency and encouraging citizen participation in government.

On the transparency side, the Administration launched the hotly anticipated data.gov, a site that provides the public access to machine readable datasets from government agencies. The goal is to inspire innovative uses of government data by developers and researchers -- a process that has already begun with the Apps for America 2 contest, sponsored by the Sunlight Foundation, Google, O'Reilly Media, and TechWeb. The Administration also introduced the Innovations Gallery, which highlights pro-transparency efforts of government agencies.

On the side of citizen participation, the government is seeking public submissions to the Open Government Dialogue, a collaborative "idea" site (much like the "Join the Discussion" site used by the Obama transition team). The site will collect and rank policy ideas from the public on topics such as transparency, participation, collaboration, capacity building, legal and policy challenges, and more. The Open Government Dialogue is the first step in a three-part policymaking process that will include blog discussions and collaborative editing of the penultimate recommendations on a wiki. The Administration also relaunched regulations.gov to let the public voice opinions about government rulemakings.

While the Administration's early track record on transparency definitely leaves much to be desired, we're excited to see the government using the participatory, collaborative power of the web to enhance policymaking processes. We look forward to seeing more steps from the Administration to make the promise of government transparency a reality.